Firm Jawala Sahai vs Firm Durgarsi Lal Har Lal

Chopra, J.—This is plaintiff''s second appeal in a money suit decreed by the trial Sub-Judge but dismissed on appeal by the District Judge, Narnaul on the ground that the plaintiff, a Hindu family firm, could not sue as such under O. 30, R. 1, C.P.C. The suit was brought on 6-1-1997 and was for Rs. 211/12/- the price of goods supplied to the defendant. It was previously dismissed as timebarred by the trial Court on 6th Magher 2000. Appeal by the plaintiff to the District Judge was accepted on 8-7-2002, the suit was held to be within time and the case remanded to the trial Court for decision on merits. An additional issue incorporating an objection raised by the defendant in the written statement, was framed by the District Judge. The issue ran as follows:

Whether the plaintiff''s form a joint Hindu family and the suit in the name of the firm was not maintainable? O.D.

The trial Sub-Judge on receiving back the case found in favour of the plaintiff on all the issues and decreed the suit. The defendant then went in appeal to the District Judge, which was accepted on the ground that the plaint had not been properly framed. The additional issue was decided in favour of the plaintiff and the suit was consequently dismissed. This is plaintiff''s second appeal against the decision of the District Judge.

Shri Ram Niwas for the appellant has strenously contended that certain amendments were made to the first schedule of the CPC by the rules framed by the Patiala High Court under Clause 53 (e) of the Patiala Judicature Farman, 1999. These rules were contained in Notification No. 126 of 18-1-2002, and after necessary sanction of His Highness Shri 108 Maharajadhiraj Mahendra Bahadur, were published in the His Highness'' Government Gazette, Patiala, dated 21st Jeth 2002. These rules were to come into force on the day they were published in the Gazeztte Rule No. 56, added the following explanation to Order 30, R. 1 C.P.C.

This rule applies to a joint Hindu trading partnership.

It may be remembered that these rules were enforced when the plaintiff''s appeal against the original decree of the trial Sub-Judge dismissing his suit on the point of limitation, was pending before the District Judge. The additional issue was framed by the District Judge and the case remanded to the trial Court after these rules had had the force of law. It is urged by Shri Ram Niwas that this amending law which related only to procedure and did not affect the rights of the parties, must have been given a retrospective effect and applied to the pending action. The argument is that the District Judge after his rule had been enforced, was wrong to decide the issue in favour of the defendant and dismiss the suit. In my opinion there is much force in the contention.

It is an admitted principle of the interpretation of statutes that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms made applicable to pending actions do not affect them, but where the enactments merely relate to procedure and do not extend to rights of action, they shall be held to have a retrospective effect, unless it is otherwise provided by the statute itself. If a statute deals merely with the procedure in action and does not effect rights of the parties it will apply prima facie, to all actions pending as well as future. Maxwell on Interpretation of Statutes at pages 198 and 199 states as follows:

No person has a vested right in procedure. He has only a right of prosecution or defence in the manner prescribed for the time being by or for the Court in which he sues and if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The general principle however, seems to be that alterations in procedure are retrospective.

The explanation added to Order 30, Rule 1, C.P.C., was only a rule of procedure. It related to the frame of the suit and extended the application of Order 30, Rule 1, C.P.C., to a joint Hindu family trading partnership. Order 30, Rule 1, C.P.C., by providing that two or more persons could sue or be sued in the name of their firm, created an exception to the general rule that they should sue or be sued in their individual capacity. This rule was not considered to be applicable to the case of a business carried on by a joint Hindu family for the reason that the members of such a family do not constitute a firm and do not carry on business in partnership. The benefit of the rule was, therefore, not given to a business carried on by a joint Hindu family. It was to avoid this difficulty that the High Courts in India, under their respective rule-making power, enacted rules extending the application of O. 30, R. 1, C.P.C., to suits brought by or against joint Hindu family firms as well. A similar rule was framed by the High Court Patiala in 2002. The effect of this enactment was that in a suit on behalf of a joint Hindu family firm it was not necessary that the plaint be signed and verified by or on behalf of all the members of the family and all of them need not be joined as plaintiffs. As in the case of other firms the suit could be brought in the name of the firm. The rule only enacted the way in which the Courts were to be approached for relief in a particular case. The rule, therefore, does not relate to any substantive right of the parties to an action, but only gives the mode in which the plaint need be drafted and presented. The amending law being one of procedure, in my opinion, must apply to all pending actions. I do not find anything in the statute showing that it was not to apply to the pending proceedings and without that the change in procedure would apply to pending actions also.

Brief reference may here be made to some of the authorities which support the view I take. In ''Janaki Nath v. Nirodbaran Roy'', 124 Ind Cas 817, a Division Bench of the Calcutta High Court observed that matters of procedure apply to pending suit, if the law is changed during the pendency of the suit. A Full Bench of the Patna High Court in Banwari Gope and Others Vs. Emperor, expressed the view that since no person has a vested right in any course of procedure, alterations in procedure are to be retrospective, unless there is some good reason against it. The same High Court in Abdul Razak Vs. Kuldip Narain, , maintained that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts.

Shri Amar Nath for the respondent referred me to the two cases relied upon by the learned District Judge and also cited Debendra Narain Roy Vs. Jogendra Narain Deb and Others, in support of his argument that a retrospective effect should not be given to a statute unless the legislature expressly so provides in the statute itself. The facts of these cases however, were quite different. In ''Lakhmi Chand v. Bajirao'', AIR 1921 Nag 170, the question was whether a provision of the C.P. Tenancy Act of 1920 could be given a retrospective effect. The law that was under consideration was not one of procedure; it related to the rights of the parties and it was, therefore, held that Statutes which take away or impair vested rights under existing laws or attach a new disability in respect of transactions or considerations already passed, must be presumed not to have a retrospective operation. In AIR 1943 238 (Lahore) , the Court was considering the application of Section 4 of the Punjab Debtor''s Protection Act 1936 to a pending case. It was not disputed that it was a law of procedure and that it would have retrospective effect, unless the statute itself clearly provided to the contrary. On a consideration of the language used in the section itself, the Court came to the conclusion that it was intended to apply only to cases coming up after the law came into force. The last of the cases relied upon by the Counsel for the respondent Debendra Narain Roy Vs. Jogendra Narain Deb and Others, also cannot be of any help to him. The law under reference was one that related to the rights of the parties and it was consequently held that it could not have a retrospective effect unless the legislature had clearly provided that it would have such an effect. I do not also see any substance in the contention of the learned Counsel that the Rules framed by the High Court were not intended to have retrospective effect because the notification No. 126 by which they were enforced had provided that the Rules would come into force from the date of their publication in the Patiala Government Gazette. I have already observed that an amending law, even though it relates to procedural matters would not be given retrospective effect, if the amending statute makes it clear that the amendment should have only prospective effect. But the mere fact that the notification provided that the Rules would come into force from a particular date, does not mean that the framers of the Rules had no intention that they should apply to pending actions. The words used are capable of giving the notification both prospective and retrospective effect. Since I am of the view that the law relating to procedure must have a retrospective effect, unless the statute provides that it will not have such an effect and also that no such provision is to be found in the Rules framed by the High Court, the decision of the District Judge must be set aside.

Another fact that cannot be lost sight of is that if the Rule had not come into existence, the plaintiff could have applied for amendment of his plaint. This he probably did not do because the suit was not in any way defective according to law that had come into force. In any case, the learned District Judge could not have dismissed the suit after the new law had come into existence and when according to the new law there was nothing wrong in the frame of the suit. No other point has been urged by the Counsel of the parties.

In the result the appeal is accepted with costs, the decree of the District Judge set aside and that of the trial Court restored.